[2022] KEHC 12896 (KLR)

Ombwayo v Clerk of the National Assembly & 3 others; Ministry of Devolution & 12 others (Interested Parties) (Constitutional Petition 13 of 2022) [2022] KEHC 12896 (KLR) (12 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12896 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition 13 of 2022

A. Ong’injo, J

September 12, 2022

Between

Andrew Ombwayo

Applicant

and

Clerk of the National Assembly

1st Respondent

Clerk of the Senate

2nd Respondent

Attoreney General

3rd Respondent

Independent Electroral & Boundaries Commission

4th Respondent

and

Ministry of Devolution

Interested Party

Council of County Governors

Interested Party

County Assemblies Forum

Interested Party

Gideon Mbuvi Kioko Mike Sonko

Interested Party

Ferdinand Ndungu Waititu

Interested Party

Abdulswamad Sharriff Nassir

Interested Party

Hassan Sarai

Interested Party

William Kingi

Interested Party

Daniel Munga Kitsao

Interested Party

Said Abdalla

Interested Party

Hezron Awiti

Interested Party

Shafii Makazi

Interested Party

Antony Chitavi

Interested Party

Ruling

1. The applicant filed a notice of motion of an amended notice of motion seeking the following orders: -a.That this application be certified urgent and held ex partein the 1st instance during the court’s vacation.b.That pending the hearing and determination of this application inter parties and or till further orders of his court , the gubernatorial general elections for Mombasa County scheduled for the August 23, 2022 hitherto rescheduled to the August 29, 2022,the declaration , gazettement and or swearing in the winner be and is hereby suspended and or stayed.c.That pending the hearing and determination of the petition herein file the gubernatorial general elections for Mombasa County schedule for the August 23, 2022 hitherto rescheduled to the August 29, 2022, the declaration gazttement and or swearing in of the winner, be and is hereby suspended and or stayed .d.That costs of the application to the applicant.e.The applicant filed an amended petition on September 8, 2022, seeking the following reliefs reproduced verbatim;-a.A declaration that section 33 County Government Act No 17 of 2012 is unconstitutional for being ultra vires and inconsistent with articles 1(2), (3). 2 (1-4), 3 (1), 96(1), 98(1) , 92) , 174 (a-i), 175 9a-c), 179(1) , (2), 181(1), (2). , 185(3), 190(1) , 200(!) , (2) and 259 (3) (2) and 11 of the Constitution and that all impeachments undertaken in the Republic of Kenya pursuant to that provision of the law , the standing orders of the County Assemblies of Kenya om impeachment of County Governors’ founded upon that leal provision and the decisions and resolution of the County Assemblies of Nairobi and Kiambu to impeach the 4th and 5th interested parties respectively and he resolution an decision of the senate to impeach the 4th and 5th interested parties and or approve and adopt the resolution of their respective county assemblies to so impeach them, and additionally the 4th respondent decision to refuse to clear he 4th and 5th respondent parties to participate in the general elections in Kenya and or any general elections for the position of county governor and the Mombasa Gubernatorial elections held on the August 29, 2022 upon locking out the 4th interested party from participating owing to his impugned impeachment are all equally unconstitutional , invalid , null and void.b.An order of prohibition to stop the 4th respondent from refusing to clear the 4th and 5th respondent interested parties to parcipate in any general or other elections on the basis of their impugned disqualification for having been impeached and from conducting the general election for the position of County Governor of Mombasa that is scheduled for the August 23, 2022, hitherto rescheduled to the August 29, 2022, the declaration and gazzettment the 6th interested party as the Mombasa County Governor elect , and or the judge of the High Court Mombasa from swearing in the 6th interested party as the Mombasa County Governor.c.An order ofmandamusto compel the 4th respondent to recall and reconsider the 4th and 5th interested parties’ respective nomination applications to participate in the general election hitherto scheduled for the August 9, 2022 for the positions of county governors and or for any elective positions in the Republic of Kenya.d.Costse.That this court shall deem just.

SUMMARRY OF FACTS ALLOWED IN THE PETITION 2. The petition is grounded on the following facts, summarized herein;-

3. That section 33 of theCounty Government’s ActNo 17 of 2012 that was enacted to give effect to article 174 of the constitution on the objects of devolution to article 175 principles of devolved government and article 181 on removal of a County Governor are inconsistent and renders the governors impeachment invalid under article 2(4) of the Constitution.

4. TheConstitution has provided removal of county Governors under article 181(1) on four grounds but has failed to declare whose mandate it is to remove County Governors.

5. Article 181(2) merely empowered parliament to enact legislation on procedure of removing county governors but not the entity that would have carried out the mandate.

6. That parliament is regarded article 181(2) and enacted section 33 County Governments Act No 17 of 2012 which overreached itself and conferred removal of / impeachment mandate upon 47 County Assemblies and senate that impeached 4th and 5th interested partied who have been barred from seeking /holding public office.

7. That article 200 (1) of the Constitution empowers Parliament to enact legislation to give effect to chapter 11 of the Constitution on devolution which read with article (2) (d) and (e) does not empower parliament to confer impeachment of county governors upon county assemblies’ member.

8. That refusal of the 6th interested party to register candidacy of the 4th and 5th respondent violated the constitutional provisions and right and freedoms guaranteed in the Constitution.

9. That denotation of the role of impeachment to the County Assembly and the senate under section 33 County Government Act No 17 of 2012, Parliament acted ultra vires.

10. That role accorded to the county assembly under article 185(3) was an oversight over the county executive committee and any other county executive organ but the Constitution did not anticipate oversight role would extend to or include removal or impeachment ofCounty Governor ActNo 17 of 2012 purported to do.

11. That parliament acted inconsistently with article 6(2) constitution that provides county levels are distinct and inter-dependent and shall conduct their roles on the basis of cooperation.

12. Parliament failed its obligation under article 190 (1) of the constitution to enact legislation that would ensure County governments have adequate support to enable them perform their functions.

13. That role ascribed to senate in removal of impeachment of governors under section 33 county Governments Act No 17 of 2012 is inconsistent to mandate given to senate under article 96 (1) Constitution.

14. TheConstitution could have been specific if it intended for the senate to participate in impeachment of County Governors as it did under article 96(4) where it granted the senate oversight role over state officers.

15. That 4th and 5th respondent are entitled to protection under theConstitution and their removal from office was premature, void and invalid and cannot be allowed to stand.

16. Consequently standing orders applied by county Assemblies of Nairobi and KIambu and senate to impeach 4th and 5th interested parties were founded on impugned section 33 of the County Government’s Act No 17 of 2012 are unconstitutional, void and invalid.

17. On whether a prima facie case has been made out, the petitioner submitted that this is a public interest petition as set out under paragraph 10 of the amended petition dated September 8, 2022 which is a novel case that questions the constitutionality of section 33 of the County Government ActNo 17 of 2012 on grounds that:

18. Article 181 (2) of theConstitution empowered parliament to enact legislation only on the procedure for the removal of county governors on the four (4) grounds enumerated under article 181 (1) thereat. However, parliament overreached itself and acted ultra vires article 181 (2) of Constitutionby deciding on the mode of removal through impeachment, and by empowering both the County Assemblies and the Senate to impeach county governors which powers were not granted by the Constitution;

19. If removal of county governors under article 181 (1) of the Constitution were to be by impeachment, through the County Assemblies and the Senate, then the Constitution should have expressly provided so, as it provided elsewhere under article 104 and 145 (1) on the mode and manner of recalling a Member of Parliament and the impeachment of the President of the Republic of Kenya respectively, or even granted parliament powers to enact enabling laws over and above the guiding or procedural laws that Parliament was empowered to enact under article 181 (2) of the Constitution;

20. The County Assemblies’ oversight role under article 185 (3) of theConstitution does not extend to the county governors or to the impeachment of county governors or to participate in their removal from office but has a limited role over county executive members;

21. The senators’ role under article 96 (1) of the Constitution to represent the counties and to protect the interest of counties and their governments, or under article 98 (2) thereof that empowers it to only vote on matters affecting counties generally or as a collegiate, did not empower it to deal, as a collegiate, with the issue of impeachment as a specific county government, which is the sole business of that county government, of course within the parameters of the rule of law: there is no power, within theConstitution, that permits the senate to impeach county governors;

22. Parliament, by enacting section 33 of the County Governments Act No17 of 2022 as it did, therefore acted ultra vires its mandate under Article 190 (1) and 200 (1), (2) (d) and (e) of the Constitution;

23. Articles 259 (3)(a) and (11) of the Constitution bound parliament, the County Assemblies and the Senate to only exercise powers prescribed to them, in the manner prescribed;

24. All these public institutions therefore violated the cardinal precept of constitutional law, the supremacy of theConstitution, which is guaranteed under article 2 (1) of the Constitution, and which provides that theConstitution is the supreme law of the Republic of Kenya which binds all persons and all state organs at both levels of government. In addition, they usurped article 2 (2) of the Constitution that provides that no person may claim or exercise state authority except as authorized under the Constitution; and

25. Consequently, the 1st and 2nd respondent’s standing orders on impeachment of county governors and their respective decisions or resolutions to impeach the 4th and 5th interested parties are unconstitutional, invalid, null and void, and so are the subsequent decisions that implemented those impeachment decisions, or the actions that proceeded in the enforcement or legitimization: the 4th respondent’s decision to bar both the 4th and 5th interested parties from participating in the general elections of August 23, 2022 for the Kiambu County gubernatorial elections for Mombasa on the August 29, 2022, those elections, the declaration, gazettment and swearing in of the county governors, now especially of the 6th interested party as the county governor of Mombasa that is scheduled for the September 15, 2022.

26. The petitioner therefore humbly submits that the case has a high probability of success, having raised a prima facie case that demonstrates the unconstitutionality of the legal provisions, the standing orders and the decision to impeach the 4th and 5th interested parties.

27. On whether irreparable harm shall be suffered unless interim relief to stop the swearing in and assumption of office by the Mombasa County Governor elect, the 7th interested party is stopped or stayed, the petitioner submitted that article 176 (1) of the Constitution establishes the county government which consists of the county assembly and the county executive, of which the county governor and his deputy are the chief executive and the deputy chief executive of the county respectively under article 179 (4) thereunder. The county governor is discretely elected by registered voters in the county under article 180 (1) of the Constitution. That by locking out the 4th and 5th interested parties from contesting the gubernatorial elections of Mombasa and Kiambu counties respectively, the public, rate payers and citizens of those counties were denied the opportunity to elect their respective leaders from an array of qualified contesters which, in turn, violated their, and the 4th and 5th interested parties’ political rights that is protected under article 38 of the Constitution.

28. The petitioner submitted that the applicant has lodged the application herein to stop the swearing in of the 6th interested party in order to arrest the constitutional violations set out in the petition, which shall be rendered nugatory, otiose and a mere academic exercise if the swearing in scheduled for the September 15, 2022 by this court proceeds.

29. The petitioner further submits that it shall be in the public interest to allow the interlocutory application, and further that there shall be no vacuum or lacunae even if the orders sought is granted. Indeed, in the absence of the county governor, the county executive committee, currently in office, shall continue in office till a new county executive committee shall take over 21 days from the swearing in of the members of the county assembly of Mombasa, under section 42 (2) of the County Governments Act No 17 of 2011. That moreover, the executive authority of the county government is exercised by the county executive committee and not the county governor unilaterally, under article 179 (1) of the Constitution. That consequently, stopping the assumption of office of the 6th interested party shall not prejudice the functions of the subject county, but shall protect the rights of the public in that county.

30. The Petitioner relied on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others[2014] eKLR which was adopted in Adrian Kamotho Njenga v Selection Panel for the Appointment of commissions of the Independent Electoral and Boundaries Commission (2021) & 2 Others; Independent Electoral and Boundaries Commission [2021] eKLR where it was held that conservatory orders, consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitude, and priority levels attributed to the relevant causes. The petitioner also cited the case of Katiba Institute & Anor v The Attorney General & Anor [2017] eKLR and the Council of Governors & 3 Others v Senate & 53 Others[2015] eKLR.

ANALYSIS AND DETERMINATION 31. Having considered the application the grounds and the supporting affidavit by the petitioner/ applicant, this court finds that aprima facie case has not been established to warrant the grant of a conservatory order as it is not satisfactory that the respondent and interested parties were properly served.

32. The reliefs being sought by the applicant are a declaration that section 33 of the County Governments Act is unconstitutional and inconsistent with several articles of the constitution and it is not directly related to the assumption of the office of the Governor of Mombasa County alone but also the impeachment of the 4th & the 5th interested party who were governors of Nairobi and Kiambu Counties respectively. It is therefore the view of this court that before any far reaching orders are issued, the parties ought to be given an opportunity to respond to the petition which should then be disposed as per the directions of the court.

33. The amended notice of motion dated August 26, 2022 is not allowed. The petitioner should serve the persons holding the offices cited herein as parties for directions on disposal of the substance of the petition on September 19, 2022 before the presiding judge.

DATED, SIGNED AND DELIVERED THROUGH MS TEAMS/E-MAIL THIS 12TH DAY OF SEPTEMBER 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel- Court AssistantMr. Ombwayo Advocate for Petitioner/PetitionerMr. Derrick Odhiambo Advocate for 4th Interested PartyNo appearance for RespondentNo appearance for 1st to 3rd, 5th to 13th Interested Parties.HON. LADY JUSTICE A. ONG’INJOJUDGE